United States v. Sembrano

• Decision Date: 12 November 2020
• Docket Number: Case No. 19-cr-00651-CRB-1
• Parties: USA, Plaintiff, v. JOHN SEMBRANO, Defendant.
• Court: U.S. District Court — Northern District of California

USA, Plaintiff, v. JOHN SEMBRANO, Defendant.

Case No. 19-cr-00651-CRB-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

November 12, 2020

ORDER DENYING MOTION TO SUPPRESS AND FRANKS HEARING

Defendant John Sembrano moves the Court to either hold a hearing under Franks v. Delaware, 438 U.S. 154 (1978), or suppress evidence found during a search of his home at Unit A, 34 Williams Avenue, San Francisco. See Mot. (dkt. 52) at 30. Because Sembrano's factual account does not justify suppressing the evidence, the Court denies Sembrano's motion.

I. BACKGROUND

A. Underlying Events

The Williams building is a two-story apartment building located at the corner of Williams Avenue and Lucy Street in San Francisco. See Anderson Decl. (dkt. 45) Ex. A. Unit A is the second story unit, with Unit B beneath it. Anderson Decl. at 2. The Unit A entrance is at the top of a staircase beginning on Williams Avenue. Id.

Image materials not available for display.

See Anderson Decl. Ex. C-1 (annotations added).

The San Francisco Ice Company is directly across Williams Avenue from the Williams building. See Anderson Decl. at 2. A Walgreens store is one lot east of the Ice Company. Anderson Decl. Ex. B. A dirt strip running along the eastern side of the Ice Company separates the Ice Company from the Walgreens parking lot. Anderson Decl. at Ex. H-1; see also Anderson Decl. Ex. B. Image materials not available for display.

Anderson Decl. Ex. B.

The Ice Company has three relevant security cameras—Camera 3, Camera 10, and Camera 11. Camera 3 is on the northern wall of the Ice Company, placed on the eastern corner and facing northwest towards Williams Avenue. Elseth Decl. (dkt. 62) at 1. Camera 10 is on the northern wall forty yards west of Camera 3, facing northeast. Id. at 2. Camera 11 is on the eastern wall of the Ice Company and captures the dirt strip. See id. at 1-2.

Sembrano agrees with, or does not dispute, the following facts. Mot. at 3-12.

On March 23, 2019, at 12:02 AM, San Francisco Police Department ("SFPD") officers responded to a radio call for a ShotSpotter activation near the Walgreens. See Falk Decl. (dkt. 47) Ex. O at JS-26.¹ SFPD found four fired cartridge casings in the Walgreens parking lot near the East building line of the Ice Company. See id. Twowitnesses confirmed that they heard gunshots in the area. Id.

On March 26, 2019, SFPD Sergeant Matthew Elseth went to the scene and reviewed the Ice Company surveillance footage. Elseth Decl. at 1. The footage shows a black SUV park in front of the Williams building. Falk Decl. Ex. P. at 23:56:45-23:57:00. The driver exits the vehicle and walks up the stairs to Unit A. Id. at 23:57:32-23:57:43. About a minute later, two more individuals exit the vehicle and climb the stairs. Id. at 23:58:43-23:58:59. Shortly thereafter, an unknown male exits the rear driver side of the vehicle and runs across Williams Avenue. Id. at 23:59:10-23:59:26. His hands are in the front pocket of his hooded sweatshirt. See id. at 23:59:10-23:59:26. The unknown male moves along the Ice Company's east wall then disappears from view. Falk Decl. Ex. S at 23:59:29-23:59:32. The recording shows one flash of light in the area toward which the unknown male had been walking. See id. at 23:59:36. After the flash the unknown male reappears. See id. at 23:59:39-23:59:42. Camera 3 records the unknown male run across Williams Avenue and into Unit A. Falk Decl. Ex. P at 23:59:44-23:59:56.

B. The Search Warrant

On April 8, 2019, Elseth applied for a warrant to search both Unit A and Unit B of the Williams building for evidence relating to the March 22 incident, including the unknown male's firearm and sweatshirt. Elseth Decl. Ex. 3. The following affidavit ("Elseth Affidavit") supported Elseth's warrant application. Id. Sembrano contends that the affidavit contained numerous false statements, which are underlined below.

Summary:

On 3/23/19 officers responded to 3 ^rd St and Williams Ave regarding possible gun shots in the area. Officers canvased the area and located 40cal fired casings in the Walgreens' parking lot, 5300 3^rd St, near the East building line of 45 Williams Ave.²

One witness saw an unknown male running from the Walgreens' parking lot and enter 34 Williams Ave. Another witness saw a light colored SUV fleeE/B Wallace Ave.

Investigation:

An independently owned video surveillance system was recovered that captured the incident.

Video Summary:

Video from 45 Williams Ave (SF Ice Company) :

2357Hrs: A Blk SUV, possible Tahoe, drives S/B Lucy St to W/B Williams Ave the vehicle immediately pulled over in front of 34 Williams Ave. The male driver ran into the second story entrance to 34 Williams Ave, unit A.

2348Hrs: Two unknown passengers exit the passenger's side of the vehicle and run into the second story entrance to 34 Williams Ave, unit A.

2359Hrs: An unknown male exits the rear driver's side of the vehicle and runs to the south side of Williams St, toward 5300 3^rd St (Walgreens). The unknown male is seen holding his waistband as he runs across the street.³

23:59:25Hrs: the unknown male is seen running along the east building line of 45 Williams Ave. At this point three flashes can be seen from the area the male is seen that resembles the muzzle flash of a firearm.⁴ The unknown male is seen running across Williams Ave to the north side of the street as he conceals an unknown object into his waistband.⁵ The male flees into the second story entrance to 34 Williams Ave, unit A.

The unknown male is a dark skinned male wearing a dark hoodie with a white square shaped logo on the front and light colored pants.

3/23/19

0011Hrs: two unknown residents from unit B are seen leaving unit B and walking up the stairs to unit A.⁶

An Accurint database search revealed that the last name of residents associated with 34 Williams Ave is associated with both unit A and B.

A records check revealed that Sheldon Mean, a resident associated with 34 Williams Ave, has a Smith & Wesson 40 Cal handgun . . . registered to him.⁷ Due to the fact that 40 Cal casings were recovered at the initial incident it is likely that this firearm may be involved, therefore this firearm may have evidentiary value. . . .

Based on the video surveillance I believe that an unknown resident at 34 Williams Ave committed the following felony offense of 246.3PC (negligently discharging a firearm in public).⁸ Based on the fact that the firearm has not been recovered and the fact that the shooting [occurred] approximately 10 days prior it is likely that the unknown resident is still in possession of the firearm that was used.⁹ I believe that granting this search warrant will provide additional evidence that the unknown resident was involved in this case and in possession of the firearm.

Through my training and experience I know that subjects who possess firearms often keep them near their persons at all times of the day and night which is a major officer safety issue.

Elseth Decl. Ex. 3 at JS-133-34.

San Francisco Superior Court Judge Haines issued the search warrant the same day. Elseth Decl. at 11.

C. The Search, Arrest, and Charges against Sembrano

SFPD officers executed the search warrant on April 9, 2019, seventeen days after the late March 22 and early March 23 incident. Elseth Decl. Ex. 4 at JS-10. In Sembrano's Unit A bedroom, officers found a Kimber Micro nine-millimeter firearm. Id. at JS-20-21. Sembrano, who had previously been convicted of a felony, was arrested and charged with being a Prohibited Person in Possession of a Firearm under California PenalCode section 29800(a)(1). Id. at JS-10. On December 5, 2020, a Federal grand jury returned an indictment charging Sembrano with being a Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1). Indictment (dkt. 1) at 1-3.

Sembrano now moves the Court to hold an evidentiary hearing under Franks v. Delaware or to suppress the evidence found during the search. See Mot. at 30. Sembrano argues that once all misrepresentations are removed from Elseth's affidavit, there was not probable cause to search Unit A because there was not probable cause that the unknown male seen in the security footage resided in Unit A. See Mot. at 21-27; Reply at 7-17. Sembrano also argues that no felony offense occurred on March 22, and therefore no search warrant should have issued under California law. Mot. at 28-29; Reply at 17-19.

II. LEGAL STANDARD

A. Motion to Suppress Evidence

The Fourth Amendment recognizes a "right of the people . . . against unreasonable searches and seizures." U.S. Const. Amend. IV. Unless an exception applies, the exclusionary rule prevents unlawfully obtained evidence from being introduced at trial against the person whose Fourth Amendment rights were violated. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). This includes other evidence "come at by exploitation" of the illegality. Wong Sun v. United States, 371 U.S. 471, 488 (1963).

B. Franks Hearing

The Ninth Circuit has set out a five-prong test that a defendant must meet to justify a Franks hearing:

(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; (5) the challenged statement must be necessary to find probable cause.

United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (internal citation omitted); see also United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985) (any "falsestatements must be material to a finding of probable cause."). Thus, if a warrant affidavit contains deliberate or reckless falsehoods, the Court excises those falsehoods to determine if probable cause exists without them. United States v. Reeves, 210 F.3d 1041, 1044 (9th Cir. 2000).

III. DISCUSSION

Taking the facts as Sembrano presents them,...